Refugee lawyers alarmed at LAO proposals

Legal Aid Ontario’s proposed changes to how it provides services to refugee claimants is troubling some lawyers who are calling the organization’s cost-saving plans both ineffective and unjust.

In response to funding constraints that come as new federal regulations are demanding faster processing of refugee applications, LAO is floating the idea of moving towards web- and phone-based legal services.

In a consultation paper released in October, LAO also suggests providing full representation to refugee claimants only when there’s a “reasonable likelihood of success.”

Claimants from places on the federal government’s designated country of origin list would be part of “a low priority group because their claims are much less likely to be successful,” the consultation paper states.

The number of refugee and immigration certificates increased by nine per cent in 2011-12. In the same period, legal aid funding from the federal government for refugee cases decreased by nearly $2.7 million, according to LAO.

Bill C-31, which will come into effect in December, will require those who claim refugee status at ports of entry to submit the basis of their claim within 15 days following a referral to the Immigration and Refugee Board. The timeline adds more pressure on LAO to provide legal aid faster.

But web- and phone-based services are “simply inappropriate for refugee claimants,” says Peter Showler, director of the refugee forum at the University of Ottawa’s Human Rights Research and Education Centre.

Showler, who’s also a member of the executive of the Canadian Association of Refugee Lawyers, says claimants often don’t have the legal, linguistic or cultural understanding to absorb information and represent themselves.

Nor do refugees have the financial means to seek services elsewhere a mere two weeks after arriving in Canada, says Showler.

Countries such as Australia, the Netherlands, and Sweden have the 15-day submission rule for refugee claims, but those jurisdictions also provide state-supported counsel to all applicants, he adds. “The federal government created this system and they are accountable,” says Showler.

LAO also recommends providing minimal service to claimants from countries with a likelihood of approval of 90 per cent or more since their probability of success is high despite not having legal counsel to represent them at the board.

“The immediate results of that would be that [claimants] get rejected and acceptance rates would plummet,” says Toronto refugee lawyer Raoul Boulakia, who calls LAO’s new service recommendations “very disturbing.”

He says it’s also unfair to provide less service to refugee claimants from places on the designated country of origin list of jurisdictions deemed to be generally safe.

“As soon as the federal government is picking on a group of refugees, then that means that they wouldn’t get a lawyer?” he asks.

But LAO says the changes are necessary if it’s going to be able to keep providing refugee services given its current financial state.

“Over the past several years, LAO has spent far more on refugee law services than it receives in funding from the federal government through the province of Ontario,” says LAO spokesman Kristian Justesen.

“Despite refugee law and decision-making processes falling exclusively within federal jurisdiction, the federal contribution represented only 31 per cent of LAO’s current refugee cost.”

Funding from the Law Foundation of Ontario, the second largest LAO funder next to the provincial government, also plunged by $50 million in 2009-10 for a drop of more than 90 per cent.

The funding constraints come as LAO is set to continue with seven increases to the legal aid tariff. A memorandum of understanding LAO signed jointly with the Ministry of Attorney General and the Criminal Lawyers’ Association mandates the pay hike for lawyers providing legal aid services.

By 2015-16, hourly tariffs will increase by up to 66 per cent, according to LAO. That will add a $7-million cost pressure on the organization beginning in 2014-15.

The Ontario government has promised money for the first four tariff increases, but LAO doesn’t yet know how it will fund the rest.

Boulakia, however, says LAO and the Ontario government aren’t entirely blameless.

He sees complacency when it comes to pushing for more federal dollars. “There is an assumption that the only money the federal government would give is the one that’s allocated,” he says.

“Ensuring access to justice is a provincial responsibility, too,” he adds. As a result, he’s urging the Ontario government to immediately provide more funding and then make a clear demand from the federal government.

“You don’t starve your children and say, ‘My ex-husband hasn’t given me money,’” he says.

But LAO says it’s unrealistic to expect new resources from the Ontario government as it has already made “substantial, multi-year investments in legal aid.”

Historically, it says, the provincial and federal governments funded refugee services on an equal basis.

But Boulakia says the funds needed to provide what he feels is the right level of services are only a fraction of the total amount LAO receives. “We’re talking about very little money. It really takes very little to create an extremely detrimental effect or make a huge positive change.

The justification for these cuts is that there is more need. Go figure.”

LAO is also proposing alternative service delivery options through paralegals, immigration consultants, and legal clinics.

But Boulakia questions whether immigration consultants can represent refugees as he doesn’t believe they have “the depth of understanding of the law” to do the job.

With only 15 days to submit a claim and the designated country of origin list making some cases harder to prove, it takes a representative with “educated eyes and ears” to know if there’s a valid claim, says Showler.

He suggest paralegals can do “excellent work” but only under the supervision of lawyers.

There’s no consistency throughout Canada on the provision of refugee legal aid. Alberta and Quebec deliver services through a mix of staff and private bar lawyers.

In British Columbia, non-legal counsel such as students and settlement workers often do the work. Other provinces like Nova Scotia and New Brunswick have no formal refugee legal aid coverage.

The consultation period for the proposed service changes has started and it goes until Dec. 17.

LAO is hearing opinions in writing, at in-person consultation sessions, and via a live webcast session with stakeholders in the province.

For more, see "Feds to blame for legal aid cuts" and "Legal clinics facing significant reform."

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